Richard M. Frazier v. STEPHEN J. HUFFMAN, Warden

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0320P (6th Cir.)
File Name: 03a0320p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RICHARD M. FRAZIER,
Petitioner-Appellant,
v.
STEPHEN J. HUFFMAN,
Warden,
Respondent-Appellee.
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No. 01-3122
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 98-02098—James G. Carr, District Judge.
Argued: October 15, 2002
Decided and Filed: September 8, 2003
Before: BATCHELDER, CLAY, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: John B. Nalbandian, TAFT, STETTINIUS &
HOLLISTER LLP, Cincinnati, Ohio, for Appellant. Michael
L. Collyer, OFFICE OF THE ATTORNEY GENERAL OF
OHIO, Cleveland, Ohio, for Appellee. ON BRIEF: John B.
2 Frazier v. Huffman No. 01-3122
Nalbandian, Daniel F. Oberklein, James V. Schuster, TAFT,
STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, David
Paul Bradley, GALLAGHER, SHARP, FULTON &
NORMAN, Cleveland, Ohio, for Appellant. Michael L.
Collyer, OFFICE OF THE ATTORNEY GENERAL OF
OHIO, Cleveland, Ohio, Henry G. Appel, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for
Appellee.
GILMAN, J., delivered the opinion of the court, in which
CLAY, J., joined. BATCHELDER, J. (pp. 34-42), delivered
a separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Tiffany Skiba
was stabbed to death on November 8, 1990. The grand jury
in Cuyahoga County, Ohio indicted Richard M. Frazier on
two counts of aggravated murder for the death of Skiba, each
with three death-penalty specifications, and on one count of
aggravated burglary. Frazier proceeded to trial in state court
on August 5, 1991. The jury convicted him on all counts and
subsequently recommended that he be sentenced to death.
That recommendation was adopted by the trial judge.
After exhausting his direct appeals and state postconviction
remedies, Frazier sought a writ of habeas corpus in federal
court pursuant to 28 U.S.C. § 2254. He raised multiple
grounds for relief, but primarily focused on claims of
evidentiary error, prosecutorial misconduct, and ineffective
assistance of counsel. The district court denied Frazier’s
petition, but granted him a certificate of appealability on all
issues. For the reasons set forth below, we REVERSE in
part the judgment of the district court, GRANT Frazier a
conditional writ of habeas corpus that will result in the
vacation of his death sentence unless the state of Ohio

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No. 01-3122 Frazier v. Huffman 3
commences a new penalty-phase trial against him within 180
days from the date that the judgment in this matter becomes
final, and REMAND the case for further proceedings
consistent herewith.
I. BACKGROUND
A. Factual background
Frazier married Susan Bednarski in 1980, thereby
becoming the stepfather of Bednarski’s eight-year-old
daughter from a previous relationship, Tiffany Skiba. In
February of 1988, Bednarski discovered that Skiba was
pregnant. Both women believed that Skiba’s pregnancy was
the result of sexual abuse by Frazier. Bednarski sought a
divorce. Skiba spoke to the local authorities in Medina
County, Ohio. In October of 1988, Frazier was indicted in
state court on two counts of rape and two counts involving
other sex crimes. One month earlier Skiba had given birth to
a son.
The state criminal court ordered Frazier to submit to a
blood test to determine the paternity of Skiba’s child. He
appealed that order to the intermediate state appellate court
and to the Ohio Supreme Court. After the Ohio Supreme
Court denied Frazier relief, he petitioned the United States
Supreme Court for a writ of certiorari. Frazier remained free
on bond during the pendency of these proceedings. The
United States Supreme Court declined to hear Frazier’s case
on October 1, 1990. Dates for the blood test and the trial
were then set by the state criminal court.
Throughout 1989 and 1990, Skiba was terrified of Frazier.
She was visibly disturbed any time that she was in his
presence. Skiba confided in one friend her fear that Frazier
was going to kill her. She moved into her grandparents’
home and started sleeping with a knife under her pillow.
4 Frazier v. Huffman No. 01-3122
Skiba’s grandfather, Robert Skiba, followed his usual
practice on November 8, 1990 when, at 5:00 a.m., he drove
his wife to work at a nearby hospital and returned home
fifteen minutes later. Upon his arrival home, his dog was
barking and looking excitedly at the back door. Robert Skiba
apparently thought little of this unusual behavior at the time.
After calling upstairs for his granddaughter at 10:00 a.m. and
receiving no response, however, he went upstairs to check on
her. Upon entering Tiffany Skiba’s bedroom to rouse her,
Robert Skiba was met with the ghastly sight of his
granddaughter’s corpse lying in bed, covered in blood and full
of puncture wounds.
Police officers who arrived at the scene discovered a broken
steak knife next to Skiba’s body. The knife was part of a set
belonging to her grandparents. There was blood on the knife,
in the surrounding area, on the stairway heading down from
the second-floor bedroom, and on the first-floor living room’s
door frame. The police discovered that the screen on a
basement window had been removed and that one of the
panes of glass had been shattered. Although it was normally
kept closed, the door leading from the basement into the rest
of the house was open. One of Skiba’s uncles had once
shown Frazier how to gain access to the house through the
basement window when they had been accidentally locked
out. The neighboring yard contained footprints that pointed
away from the Skiba residence. A study of the footprints
revealed that they were made by someone wearing size nine
or ten boots in a style sold exclusively by K-Mart.
Also on the morning of November 8, 1990, Frazier visited
a medical clinic to get treatment for a one-inch cut on his
wrist. The cut was consistent with a stab wound. That night,
Frazier drove to the home of his friends, the Shamons, in a car
that he had rented at the airport two days earlier. The police
arrested him at the Shamons’ home on November 12, 1990.
At the time of his arrest, Frazier had with him a letter from
the United States Supreme Court informing him that his
petition for certiorari had been denied. In Frazier’s apartment

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No. 01-3122 Frazier v. Huffman 5
the police discovered a receipt from K-Mart for a size-nine
boot of the same style found imprinted in the neighboring
yard near the Skiba residence.
Frazier was taken to the Medina County jail. He was
transported the next day from the jail to a clinic, where the
long-ordered paternity test was administered. The test
confirmed that Frazier had fathered Skiba’s son.
On November 14, 1990, Frazier telephoned Officer James
Svekric from the jail. Frazier had known Svekric for many
years, and Svekric was one of the police detectives who had
transported Frazier the previous day. Frazier asked Svekric
to bring him Frazier’s telephone book and prescription
medication. Svekric, accompanied by another police officer,
visited Frazier that day. According to Svekric, Frazier waived
his right not to incriminate himself and asked the officers
“what [they] could do for him, if [they] could get him a
definite sentence in Cleveland as to a flat time, how much
time he was going to do if he was to plead guilty.” The police
officers told Frazier that although they could tell the
prosecutor and the judge that Frazier had cooperated, they had
no authority to negotiate a plea agreement. Frazier then
returned to his cell.
A short time later, however, the police officers conducted
a second interview with Frazier, this time in the presence of
the local prosecutor, Tim McGinty, who had been waiting in
an adjacent building. McGinty informed Frazier that he was
about to bring the matter of Skiba’s death before a grand jury
and that he intended to have Frazier indicted for murder.
Frazier offered to provide information about other crimes in
exchange for an agreement to allow him to plead guilty.
McGinty replied, however, that in order to establish his
credibility, Frazier would need to provide the details of
Skiba’s murder. Frazier was then asked whether he intended
to kill Skiba when he went to her grandparents’ home on
November 8, 1990. In Svekric’s recounting, “he shook his
head no, but he did not give us a verbal answer or explain
6 Frazier v. Huffman No. 01-3122
what his intent was that morning.” Svekric related the
remainder of the interview as follows:
And I asked him a question, “Do you want to tell us
exactly what happened on November 8th with Tiffany
Skiba, yes or no,” and his answer was, “Yes, I will tell
you everything you want to know.” But at that time he
also stated that he thinks his attorney should be present
. . . .
Frazier’s jailhouse interview was then terminated.
B. Procedural background
The Cuyahoga County grand jury returned a three-count
indictment against Frazier. Count One charged him with the
murder of Skiba. The first count contained three death-
penalty specifications—for felony murder, the murder of a
witness, and murder to escape accounting for another crime.
Count Two charged Frazier with the murder of Skiba during
the commission of a burglary. It also contained the three
identical death-penalty specifications enumerated in Count
One. The third count charged Frazier with burglary.
On August 21, 1991, the jury convicted Frazier on all
counts. The next phase of the trial concerned the appropriate
penalty, at the conclusion of which the jury recommended
that Frazier be sentenced to death. On August 29, 1991, the
trial court adopted that recommendation.
Frazier appealed his conviction and sentence without
success through the Ohio state courts, both on direct appeal
and through a petition for postconviction relief. He then
initiated federal proceedings for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 in September of 1998. The
district court denied his petition, but granted him a certificate
of appealability on all issues. This timely appeal followed.

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No. 01-3122 Frazier v. Huffman 7
II. ANALYSIS
A. Standard of review
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24,
1996), applies to Frazier’s case because he filed his habeas
corpus petition after the Act’s effective date. Lindh v.
Murphy, 521 U.S. 320, 336 (1997). A federal court is
authorized to grant a writ of habeas corpus to a person in
custody pursuant to a state-court judgment, but only if the
adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision
that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d). All of Frazier’s claims are governed by
§ 2254(d)(1).
A federal court may grant a writ of habeas corpus under
§ 2254(d)(1)’s “contrary to” clause “if the state court arrives
at a conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,
412-13 (2000). Section 2254(d)(1)’s “unreasonable
application” clause provides two additional bases for habeas
relief. Campbell v. Coyle, 260 F.3d 531, 539 (6th Cir. 2001),
cert. denied, 535 U.S. 975 (2002). The first avenue of relief
occurs if “the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts . . . .”
Williams, 529 U.S. at 413. Second, relief is available under
this provision if the state-court decision “either unreasonably
8 Frazier v. Huffman No. 01-3122
extends or unreasonably refuses to extend a legal principle
from Supreme Court precedent to a new context.” Campbell,
260 F.3d at 539.
The Supreme Court has declared that “a federal habeas
court making the ‘unreasonable application’ inquiry should
ask whether the state court’s application of clearly established
federal law was objectively unreasonable.” Williams, 529
U.S. at 409. In its elaboration on the meaning of the term
“objectively unreasonable,” the Court stated that “a federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-
court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also
be unreasonable.” Id. at 411.
In the present case, the district court applied the standards
set forth under AEDPA and determined that Frazier was not
entitled to habeas relief. We review de novo the district
court’s denial of Frazier’s petition. Macias v. Makowski, 291
F.3d 447, 451 (6th Cir. 2002).
B. Certificate of appealability
Before reaching the merits of Frazier’s claims, we address
a procedural problem that has hindered our consideration of
this appeal. The district court in this case granted a certificate
of appealability on all issues, with the following explanation:
Until such time as such precedent is submitted to me,
and, is shown to be applicable to a case at hand, I expect
that I shall, as I did in this case, grant certificates of
appealability in capital habeas cases as a matter of
routine.
Others may view this as an abdication of
responsibility; it is, rather, a manifestation of the
possibility of my own fallibility, and concern that I may
have erred. I do not believe that I have erred—but doubt

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No. 01-3122 Frazier v. Huffman 9
that I have, no matter how strongly felt, is not certainty
that I have not.
This rationale is contrary to our decision in Porterfield v.
Bell, 258 F.3d 484 (6th Cir. 2001), which was also a capital-
murder case. Like here, Porterfield had been granted a
certificate of appealability on all issues. We noted in
Porterfield that such a blanket grant conformed to neither the
commands of 28 U.S.C. § 2253(c) (providing in part that a
“certificate of appealability may issue . . . only if the applicant
has made a substantial showing of the denial of a
constitutional right . . . [and] shall indicate which specific
issue or issues satisfy the showing required”), nor the
Supreme Court’s construction of the statute in Slack v.
McDaniel, 529 U.S. 473 (2000) (holding that the
requirements of § 2253(c) applied regardless of whether the
district court rejected a constitutional claim on the merits or
on procedural grounds). Because a blanket grant
“undermine[s] the gate keeping function of certificates of
appealability, which ideally should separate the constitutional
claims that merit the close attention of counsel and this court
from those claims that have little or no viability,” and
“because the district court [was] already deeply familiar with
the claims raised by petitioner,” we vacated the certificate of
appealability in Porterfield and remanded the matter “in order
to permit the court to engage in the reasoned assessment of
each . . . claim as required by Slack.” 258 F.3d at 487.
The language of § 2253(c) is mandatory. It was therefore
error for the district court to issue a blanket certificate of
appealability without any analysis. We recognize, however,
that the district court rendered its decision before our opinion
in Porterfield. In contrast to Porterfield, moreover, both
parties in the present case have already briefed the merits of
Frazier’s claims, so that vacating the certificate of
appealability would “further delay an already lengthy
process.” 285 F.3d at 485. For these reasons, we will excuse
the procedural error of the district court. This is an
appropriate time, however, to reiterate both that a certificate
10 Frazier v. Huffman No. 01-3122
of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right,” 28
U.S.C. § 2253(c)(2) (emphasis added), and that any such
certificate “shall indicate which specific issue or issues satisfy
the showing required,” id. § 2253(c)(3) (emphasis added).
To focus our consideration of the issues in the face of this
blanket certificate of appealability, we asked counsel for
Frazier at oral argument which claims he perceived to be his
strongest. He replied that his primary claims for habeas relief
were those premised upon the due process right to a
fundamentally fair trial and those based upon the ineffective
assistance of counsel. We agree, particularly in light of the
fact that the district court singled out “the remarkable and
unnecessary misconduct of the prosecutor” as a concern
regarding the petitioner’s right to a fair trial. Accordingly, we
devote our attention to these two issues first.
C. The right to a fundamentally fair trial
Frazier alleges that he was denied his due process right to
a fair trial, both because certain evidence was improperly
admitted and because of prosecutorial misconduct. “Cases in
[the Supreme] Court have long proceeded on the premise that
the Due Process Clause guarantees the fundamental elements
of fairness in a criminal trial.” Spencer v. Texas, 385 U.S.
554, 563-64 (1967).
1. Due process and evidentiary matters
Frazier’s first contention is that the trial court improperly
admitted (1) cumulative, gruesome photograhs of Skiba’s
corpse, (2) evidence that Skiba was terrified of Frazier, and
(3) evidence that Frazier raped Skiba. To the extent that this
is a challenge to the technical correctness of these evidentiary
rulings, we lack authority to consider the challenge. Coleman
v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001) (“A state court
evidentiary ruling will be reviewed by a federal habeas court
only if it were so fundamentally unfair as to violate the

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No. 01-3122 Frazier v. Huffman 11
petitioner’s due process rights.”). Rather, Frazier must
demonstrate that the state court’s conclusion — that the
admission of the challenged evidence did not violate his due
process rights — was unreasonable, as those rights have been
articulated by the Supreme Court.
Frazier argues that the admission into evidence of multiple
photographs of Skiba’s corpse was excessive. He notes that
the Supreme Court has stated: “In the event that evidence is
introduced that is so unduly prejudicial that it renders the trial
fundamentally unfair, the Due Process Clause of the
Fourteenth Amendment provides a mechanism for relief.”
Payne v. Tennessee, 501 U.S. 808, 825 (1991).
The Ohio Supreme Court directly addressed this
evidentiary issue, concluding that the multiple photographs
“were introduced during the coroner’s testimony to illustrate
the testimony,” that “[e]ach photograph presents a different
perspective of the victim,” and that the photographs “were
used to illustrate” the nature of the encounter that
immediately preceded Skiba’s death. State v. Frazier, 652
N.E.2d 1000, 1010 (Ohio 1995). It ultimately determined that
the photographs’ “probative value substantially outweigh[ed]
the danger of unfair prejudice” to Frazier. Id. We conclude
that the Ohio Supreme Court’s resolution of Frazier’s federal
constitutional claim concerning the admission of multiple
photographs of Skiba’s corpse was not an unreasonable
application of federal law as articulated by the Supreme
Court. See Willingham v. Mullin, 296 F.3d 917, 928-29 (10th
Cir. 2002) (refusing to grant relief on a habeas petitioner’s
claim that the admission of 22 photos of the victim’s body
was so unduly prejudicial as to render his trial fundamentally
unfair, where the state court provided a reasonable basis for
concluding that the photographs’ relevance outweighed the
danger of unfair prejudice).
Frazier next contends that the admission of evidence that
Skiba feared him rendered his trial fundamentally unfair. In
the opinion of the Ohio Supreme Court, such evidence was
12 Frazier v. Huffman No. 01-3122
admissible as a present-state-of-mind exception to the hearsay
rule. Frazier, 652 N.E.2d at 1013. The district court
concluded that evidence of Skiba’s fear “supported the
substantial evidence of [Frazier’s] likely motive.” Although
we find that the relationship between Skiba’s fear and
Frazier’s motive is tangential at best, we recognize the
existence of a logical argument that the relevance of such
evidence outweighed its potential prejudice. We are unaware,
moreover, of any Supreme Court precedent that establishes
that the admission of evidence that a murder victim feared the
defendant violates the defendant’s due process rights.
Frazier’s assertion that “[s]everal states have held
unambiguously that the state of mind of a murder victim is
irrelevant to the issue of the identity of the perpetrator” has no
bearing on our task under AEDPA. We therefore conclude
that the state courts’ resolution of this matter was not an
unreasonable application of federal law.
The third category of evidence challenged by Frazier
concerns his alleged rape of Skiba and paternity of her child.
He claims that the admission of the evidence without a
limiting instruction rendered his trial fundamentally unfair.
Before reaching the merits of this claim, we must first
consider the state’s argument that this challenge was rejected
by the state courts on the basis of state procedural rules.
A federal court is generally barred from considering an
issue of federal law arising from the judgment of a state court
if the state judgment “rests on a state-law ground that is both
‘independent’ of the merits of the federal claim and an
‘adequate’ basis for the [state] court’s decision.” Harris v.
Reed, 489 U.S. 255, 260 (1989). The adequate-and-
independent-state-ground doctrine has been applied in
refusing to address the merits of a federal claim because of
violations of state procedural rules, such as the failure to
make a timely objection at trial. Id. at 261. An adequate and
independent finding of procedural default will preclude
habeas corpus relief “unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the

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No. 01-3122 Frazier v. Huffman 13
alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage
of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In determining whether a procedural default has occurred
and, if so, what effect the default will have on federal review
of a state conviction, the district court must consider whether
(1) a state procedural rule exists that applies to the petitioner’s
claim, (2) the petitioner failed to comply with the rule, (3) the
state court actually applied the state rule in rejecting the
petitioner’s claim, and (4) the state procedural rule is an
adequate and independent ground upon which the state can
rely to deny relief. Reynolds v. Berry, 146 F.3d 345, 347 (6th
Cir. 1998). The rule precluding federal habeas corpus review
of claims rejected by the state courts on state procedural
grounds applies only in cases where the rule relied upon by
the state courts involves a “firmly established and regularly
followed state practice.” Ford v. Georgia, 498 U.S. 411, 423-
24 (1991). Furthermore, a procedural default does not bar
consideration of a federal claim on habeas corpus review
unless the last state court rendering a reasoned opinion in the
case “clearly and expressly states that its judgment rests on a
state procedural bar.” Harris, 489 U.S. at 263 (internal
quotation marks omitted).
In this case, the Ohio Supreme Court noted that Frazier
failed to object at trial to the omission of a limiting
instruction. It therefore analyzed his entitlement to the
inclusion of such a jury instruction using the “plain-error”
standard. But the larger issue was whether “the trial court
erred by admitting evidence of other crimes committed by
[Frazier].” Frazier, 652 N.E.2d at 1013. The Ohio Supreme
Court analyzed the claim on its merits, ultimately finding
Frazier’s argument to be “without merit.” Id. at 1013, 1014.
We therefore conclude that Frazier is not procedurally barred
from presenting the claim that the admission of evidence
about his rape of Skiba and the paternity of her child rendered
his trial fundamentally unfair.
14 Frazier v. Huffman No. 01-3122
Turning to the merits of the claim, we agree with the Ohio
Supreme Court that the evidence was directly relevant to
Frazier’s motive and to the death-penalty specifications. The
United States Supreme Court decision upon which Frazier
relies in pressing this claim held that the introduction of
evidence of prior crimes, where relevant to prove death-
penalty specifications, is not unconstitutional. Spencer v.
Texas, 385 U.S. 554, 568-69 (1967). We therefore conclude
that the admission of evidence that Frazier raped Skiba and
fathered her child, even without a limiting instruction, was
not an unreasonable application of Supreme Court precedent
and did not deprive Frazier of his due process rights.
2. Due process and prosecutorial misconduct
Frazier’s next contention is that prosecutorial misconduct
deprived him of his right to a fair trial. Frazier identifies
eight examples of what he characterizes as prosecutorial
misconduct. Some of the conduct that he challenges took
place during the guilt phase of his trial, while other instances
occurred during the penalty phase. Our conclusion in Part
II.D. below that Frazier must be given a new sentencing
hearing makes it unnecessary for us to consider the alleged
prosecutorial misconduct that occurred during the penalty
phase.
None of the alleged prosecutorial misconduct in the guilt
phase of the trial impinged upon a particular provision in the
Bill of Rights. The relevant question, therefore, is whether
the prosecutorial conduct “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.”
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To
decide this question, we first determine whether the conduct
about which Frazier complains was indeed improper. United
States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001). A four-
factor test is then applicable to any conduct that we find
inappropriate: “(1) whether the conduct and remarks of the
prosecutor tended to mislead the jury or prejudice the
defendant; (2) whether the conduct or remarks were isolated

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No. 01-3122 Frazier v. Huffman 15
or extensive; (3) whether the remarks were deliberately or
accidentally made; and (4) whether the evidence against the
defendant was strong.” Id.
Frazier takes issue with the following instances of the
prosecutor’s conduct during the guilt phase of the trial:
(1) using a photograph of Skiba taken before her murder in
his closing argument, (2) relying on Skiba’s fear of Frazier as
part of the state’s case-in-chief, (3) referring to Skiba’s
character during his closing and rebuttal argument, and
(4) placing an empty chair before the jury during his closing
argument to “represent” Skiba. The first instance, the use of
a photograph of Skiba during closing argument, has been
found by some courts to be within the bounds of acceptable
conduct. Nefstad v. Baldwin, No. 94-35714, 1995 WL
520050, at *2-*3 (9th Cir. Sept. 1, 1995) (finding no error by
the trial court in permitting a “closing argument [wherein] the
prosecutor asked the jury to compare a photograph of the
victim before the murder with an autopsy photograph of the
victim”); Lowe v. Abrahamson, No. 92-2020, 1995 WL
150585, at *1-*2 (7th Cir. Apr. 6, 1995) (order) (finding
“nothing improper” about “the presentation at trial of a
photograph of the murdered victim wearing a hat from his
son’s Little League baseball team”). Other courts have found
such photographs of the victim improper. Cargle v. Mullin,
317 F.3d 1196, 1223-24 (10th Cir. 2003) (agreeing with the
state court’s determination that the trial court erred in
admitting “a number of photographs of the victims while they
were alive” because the photographs were “irrelevant and
prejudicial”). The state courts in this case determined that the
prosecutor’s use of Skiba’s photograph during closing
argument was not improper. In light of the split of authority
about the propriety of such conduct, we cannot say that the
state courts’ determination was unreasonable.
The second instance of alleged prosecutorial misconduct
concerns the state’s reliance on Skiba’s fear of Frazier as part
of its proof. As noted above in Part II.C.1., the state courts
ruled that such evidence was relevant and admissible. There
16 Frazier v. Huffman No. 01-3122
is nothing improper about a prosecutor’s reliance on a state
court’s evidentiary ruling, whether or not the ruling itself was
correct.
The third instance concerns the prosecutor’s references to
Skiba’s character during his closing and rebuttal argument in
the guilt phase of the trial. These references had no relevance
to any matter in issue and were therefore improper. The Ohio
Supreme Court reached the same conclusion. Frazier, 652
N.E.2d at 1015 (commenting that “the prosecutor’s remarks
were intemperate”). This leads us to the application of the
Carter factors. In this instance, the prosecutor’s remarks
were not limited to an isolated instance. On the other hand,
they did not form the centerpiece of the prosecutor’s
argument. But the prosecutor’s remarks were plainly
deliberate. Furthermore, the state’s case was not unusually
strong. The evidence was sufficient to prove the defendant
guilty beyond a reasonable doubt, but it was not
overwhelming. There were no witnesses and no confession
(only an ambiguous offer to plead guilty), and the state
produced no blood-type or DNA evidence.
Whether the references to Skiba’s character tended to
mislead the jury or prejudice the defendant is more difficult
to determine. Although the prosecutor’s remarks did not
misstate the evidence, they were in a sense misleading
concerning the law. The prosecutor’s explicit juxtaposition
of the defendant’s constitutional rights (like the presumption
of innocence) with the “rights” of the decedent (like “the right
to go on to college” or “the right to walk down the aisle”)
suggested to the jury that certain nonexistent rights of the
decedent somehow balanced or nullified the constitutional
rights of the defendant. On the other hand, although a defense
objection to the prosecutor’s remarks was overruled, the trial
court correctly instructed the jury on the law, specifically
stating: “You must not permit sympathy or bias, prejudice or
favoritism for either side to affect your judgments.”

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No. 01-3122 Frazier v. Huffman 17
A similar analysis applies to the fourth and final alleged
incident of prosecutorial misconduct during the guilt phase,
the placing of an empty chair before the jury during the
prosecutor’s closing argument to “represent” Skiba. We
again agree with the Ohio Supreme Court’s conclusion that
this conduct was improper. Frazier, 652 N.E.2d at 1015
(“We agree with appellant that the use of the empty chair was
excessive.”) It was also deliberate. The empty chair,
however, was not the focus of the prosecutor’s argument, and
the state trial court properly instructed the jury not to be
influenced by sympathy, bias, or prejudice.
Were we to consider Frazier’s claim of prosecutorial
misconduct in the first instance, after weighing all of the
pertinent factors, the possibility exists that we might be
persuaded that he was denied a fundamentally fair trial. But
that is not our task. Rather, our inquiry is limited to deciding
whether the Ohio Supreme Court’s contrary determination
was an unreasonable application of clearly established federal
law. Because the direction in which the Carter factors point
is neither obvious nor unambiguous, we conclude that the
Ohio Supreme Court’s resolution of Frazier’s prosecutorial-
misconduct claim was not unreasonable. See Macias v.
Makowski, 291 F.3d 447, 454 (6th Cir. 2002) (holding that,
although the court “might have concluded that the
prosecutor’s comments violated [the petitioner’s] due process
rights,” the state court of appeals’s contrary conclusion was
not unreasonable, where two factors weighed in favor of the
petitioner’s claim and two weighed against it).
D. The right to the effective assistance of counsel
Frazier’s other major claim is that he was denied his right
to the effective assistance of counsel during the penalty phase
of the trial, a right guaranteed by the Sixth Amendment to the
United States Constitution. Strickland v. Washington, 466
U.S. 668, 684 (1984). Once a defendant has been convicted
of a capital offense in Ohio, the jury “shall consider, and
weigh against the aggravating circumstances proved beyond
18 Frazier v. Huffman No. 01-3122
a reasonable doubt, the nature and circumstances of the
offense, the history, character, and background of the
offender” and seven other factors, including “[w]hether, at the
time of committing the offense, the offender, because of a
mental disease or defect, lacked substantial capacity to
appreciate the criminality of the offender’s conduct or to
conform the offender’s conduct to the requirements of the
law.” Ohio Rev. Code § 2929.04(B). A sentence of death is
appropriate only if the jury is unanimously convinced beyond
a reasonable doubt that the aggravating factors outweigh the
mitigating factors. Id. § 2929.03(D)(2).
The jury had already found Frazier guilty beyond a
reasonable doubt of the death-penalty-specification charges.
Because no mitigation proof was introduced by Frazier at the
guilt phase of the trial, he was therefore virtually guaranteed
a sentence of death unless he could produce sufficient
mitigation evidence at the penalty phase to generate
reasonable doubt in the mind of at least one juror about
whether the aggravating factors outweighed the mitigating
factors. But the sum total of the evidence presented on
Frazier’s behalf during the penalty phase of the trial was the
following unsworn statement: “Ladies and gentlemen, I know
you found me guilty, and in the past I have done things that
were wrong, but I am not guilty of this crime and I am asking
you to spare my life.”
The test for establishing constitutionally ineffective
assistance of counsel is two-fold. A defendant must first
show that the performance of his or her counsel was “below
an objective standard of reasonableness.” Strickland, 466 U.S.
at 688. In order to avoid second-guessing trial counsel’s
strategic decisions, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Id. at 689 (internal quotation marks
omitted). The second requirement of an ineffective assistance

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No. 01-3122 Frazier v. Huffman 19
claim is that “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.
Frazier’s ineffective-assistance claim was rejected by the
Ohio Court of Appeals on the basis of the first prong of
Strickland. The court explained: “From the record, it can
reasonably be concluded trial counsel were appraised of the
purported brain injury from their review of medical records;
however, as a matter of trial strategy counsel deemed this
avenue of defense unworthy of further pursuit.” State v.
Frazier, No. 71746, 1997 WL 764810, at *6 (Ohio Ct. App.
Dec. 11, 1997).
The “purported brain injury” referred to above is the
damage to Frazier’s brain that occurred as the result of a 1987
fall from a ladder. Affidavits from postconviction experts on
this matter indicate that Frazier suffers from a functional brain
impairment. According to one, Frazier has a “significant
history for head trauma” to the “frontal lobe” of his brain,
which is “the site of impulse control, social judgment and
reasoning.” Frazier himself has described “a change in
decision-making abilities after his head trauma.” These
reports also suggest that a correlation could exist between this
injury and Frazier’s criminal conduct. The state has not
challenged the contention that Frazier’s trial counsel could
have developed this same information had they conducted a
reasonable investigation.
We can conceive of no rational trial strategy that would
justify the failure of Frazier’s counsel to investigate and
present evidence of his brain impairment, and to instead rely
exclusively on the hope that the jury would spare his life due
to any “residual doubt” about his guilt. This failure was not
due to counsel’s ignorance of Frazier’s brain injury. To the
contrary, the Ohio Court of Appeals acknowledged that trial
counsel were actually aware of Frazier’s brain impairment
20 Frazier v. Huffman No. 01-3122
because they saw his medical records, yet counsel failed to
investigate the matter or present any evidence regarding the
same.
Under Strickland, “strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations
on investigation.” 466 U.S. at 690-91. This court has
commented when evaluating facts similar to those here that
“the inadequacy of the attorney’s investigation . . . was
manifest.” Campbell v. Coyle, 260 F.3d 531, 553 (6th Cir.
2001) (distinguishing the facts of Campbell, where trial
counsel had the defendant evaluated by a mental health
professional who did not find any mental illness, from those
of Seidel v. Merkle, 146 F.3d 750 (9th Cir. 1998), where trial
counsel had actual notice of the defendant’s mental health
problems but failed to investigate them). We do not believe
that any reasonable attorney who saw the medical records
indicating Frazier’s brain injury would have declined to
investigate the matter. At a bare minimum, a reasonable
attorney would have compared the records with the medical
literature on brain damage, elicited information from Frazier
himself about the injury and its effects on him, or presented
the records on Frazier to someone who could competently
evaluate them. To do none of these things after seeing
Frazier’s medical records was unreasonable.
Our conclusion is bolstered by the Supreme Court’s recent
decision in the capital case of Wiggins v. Smith, 123 S. Ct.
2527 (2003). Trial counsel in Wiggins knew from their
client’s presentence report that he had lived in “misery as a
youth,” but they did not investigate his life history any
further. Id. at 2536. The Maryland Court of Appeals was of
the opinion that this performance comported with Strickland,
but the United States Supreme Court disagreed and held that
the state court’s contrary conclusion was unreasonable. Id. at
2538. In Wiggins, as in the present case, “any reasonably
competent attorney would have realized that pursuing these
leads”—in Wiggins’s case, allusions to his horrible

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No. 01-3122 Frazier v. Huffman 21
childhood; in Frazier’s, medical records of his brain
injury—“was necessary to making an informed choice among
possible defenses . . . . Indeed, counsel uncovered no
evidence in their investigation to suggest that a mitigation
case, in its own right, would have been counterproductive, or
that further investigation would have been fruitless.” Id. at
2537.
Furthermore, as both this court and the Ohio Supreme
Court have noted, residual doubt is not a mitigating factor
under Ohio law. Coleman v. Mitchell, 268 F.3d 417, 447 (6th
Cir. 2001); State v. McGuire, 686 N.E.2d 1112, 1123 (Ohio
1997). This court nevertheless concluded in Scott v. Mitchell,
209 F.3d 854, 881 (6th Cir. 2000), albeit in dicta, that the
pursuit of a residual-doubt strategy in that case was
reasonable because the defendant’s extensive criminal history
would have come to light if the jury had heard about his
background. Cf. Abdur’Rahman v. Bell, 226 F.3d 696, 707-
08 (6th Cir. 2000) (concluding that “trial counsel were
ineffective in failing to further investigate the background of
the accused,” but finding no prejudice where “it probably
would not have been the most prudent trial strategy to use
proof of appellant’s history of violent behavior and anti-social
personality disorders at either the guilt or innocence phase or
at the sentencing phase of the trial”). No such concerns could
have justified the approach in the present case, however,
where the jury had already heard considerable evidence about
Frazier’s rape of Skiba.
The prosecutor himself aptly summarized the strategy of
Frazier’s trial counsel during the penalty phase. After quoting
Frazier’s unsworn denial of guilt, the prosecutor stated:
“That’s it. Fifteen seconds of mitigation. Now, we heard a
moment ago about factors of mitigation that you find.
Apparently they don’t know.” This summary strikes us as
accurate to the extent that it reflects the fact that Frazier’s
counsel failed to offer any evidence during the penalty phase
that is recognized under Ohio law as mitigation. Based on the
22 Frazier v. Huffman No. 01-3122
above factors, we conclude that Frazier’s trial counsel
performed below an objective standard of reasonableness.
The Ohio Court of Appeals, on the other hand, implicitly
held that Frazier’s trial counsel performed at or above an
objective standard of reasonableness when it opined that “as
a matter of trial strategy counsel deemed this avenue of
defense unworthy of further pursuit.” We have concluded the
opposite. The question under AEDPA, then, is whether the
state court applied the first prong of Strickland unreasonably,
or only erroneously. See Bell v. Cone, 122 S. Ct. 1843, 1852
(2002) (clarifying that the question of whether a state court’s
application of Strickland is unreasonable is conceptually
distinct from the underlying question of whether counsel’s
performance fell short of an objective standard of
reasonableness).
Three factors were cited by the Ohio Court of Appeals in
support of its conclusion:
1) counsel’s argument to the trial court that a
psychologist would be used merely to interpret the
mitigation expert’s findings; 2) counsel’s filing of the
motion requesting a limitation on references to
mitigation factors to only those upon which appellant
ultimately relied; and 3) the thorough and professional
manner in which counsel conducted appellant’s defense
during both the guilt and the penalty phase of appellant’s
trial.
Frazier, 1997 WL 764810, at *6. The first two factors,
however, have no relevance in explaining how the strategy
ultimately pursued by Frazier’s counsel was reasonable.
Although the third factor is relevant in determining whether
the trial strategy was reasonable, it is largely conclusory and
again provides no theory upon which trial counsel’s
“strategy” could have been based. We do not believe that it
is reasonable to infer that a trial strategy, which is on its face
irrational and for which no justification has ever been

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No. 01-3122 Frazier v. Huffman 23
produced, becomes reasonable simply because of “the
thorough and professional manner” in which trial counsel
otherwise performed.
We note, moreover, that the theory of Frazier’s defense
during the guilt phase of his trial was that Frazier did not
commit the murder. He presented no insanity or diminished
capacity defense. The jury therefore did not hear any
evidence about Frazier’s brain injury during the guilt phase of
the trial. Indeed, it heard no evidence whatsoever during the
guilt phase of the trial that could bear on the issue of
mitigation. As the prosecutor accurately commented at the
opening of the penalty phase: “The State’s job is over. The
proof of the aggravating circumstances here is monumental,
unrebutted, and it is no mere allegation any longer. It is fact,
since the conclusion of this case. There has been absolutely
zero, zilch, nil evidence of mitigation.” This being the
situation, it appears to us that competent trial counsel for
Frazier would have realized that their client had everything to
gain and nothing to lose by introducing evidence of his brain
injury at the penalty phase of the case. Yet they sat on their
hands.
The instant case, therefore, is easily distinguishable from
the ruling in Bell, where the defendant’s trial counsel also
introduced no evidence during the penalty phase of the trial.
122 S. Ct. at 1848. The state court concluded that this trial
strategy passed muster under Strickland, and the Supreme
Court held that the state court’s conclusion was not
unreasonable. Id. at 1853-54. Crucial to this determination,
however, was the fact that the defendant had already
introduced his best mitigation evidence during the guilt phase
of the trial:
Because the defense’s theory at the guilt phase was not
guilty by reason of insanity, counsel was able to put
before the jury extensive testimony about what he
believed to be the most compelling mitigating evidence
in the case—evidence regarding the change his client
24 Frazier v. Huffman No. 01-3122
underwent after serving in Vietnam; his drug
dependency, which apparently drove him to commit the
robbery in the first place; and its effects. . . . Defense
counsel advised the jury that the testimony of the experts
established the existence of mitigating circumstances,
and the trial court specifically instructed the jury that
evidence of a mental disease or defect insufficient to
establish a criminal defense could be considered in
mitigation.
Id. Frazier’s counsel, in contrast, introduced absolutely no
mitigating evidence during the guilt phase of the trial.
In sum, no reason at all has been adduced to justify the
failure of Frazier’s trial counsel to investigate and present
evidence of his brain impairment, and to instead rely
exclusively on an argument of residual doubt. The state court
did not articulate one. Nor can we fathom one. Absent any
reason to explain or justify such a trial strategy, we conclude
that the state court’s determination that Frazier’s trial counsel
had performed in a competent manner during the penalty
phase was not simply erroneous, but unreasonable. See
Wiggins, 123 S. Ct. at 2538 (rejecting as unreasonable a state
court’s determination that trial counsel performed adequately
where, although no trial strategy could be articulated to justify
counsel’s unreasonable failure to investigate and present
evidence of their client’s terrible childhood, the state court
“merely assumed that the investigation was adequate”).
Habeas relief is thus warranted if Frazier can show that
there is a reasonable probability that, but for his counsel’s
deficient performance, the result of the penalty phase would
have been different. See id. at *16 (“In order for counsel’s
performance to constitute a Sixth Amendment violation,
petitioner must show that counsel’s failures prejudiced his
defense. . . . [O]ur review is not circumscribed by a state
court conclusion with respect to prejudice, as neither of the
state courts below reached this prong of the Strickland
analysis.”). To make this showing, Frazier must direct us to

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No. 01-3122 Frazier v. Huffman 25
mitigating evidence that could have been presented and that
is sufficient to undermine our confidence in the outcome of
the penalty phase. Strickland v. Washington, 466 U.S. 668,
694 (1984). Furthermore, AEDPA requires Frazier to have
developed the factual bases for his claims during
postconviction proceedings in state court. Alley v. Bell, 307
F.3d 380, 386 (6th Cir. 2002) (“These rules apply both to
entirely new legal claims and new factual bases for relief; for
a claim to be considered exhausted, the habeas petitioner must
have fairly presented to the state courts the substance of his
federal habeas claim.”) (internal quotation marks omitted).
We agree with the state that Frazier failed to develop any
facts concerning his general history, character, and
background in the state postconviction proceedings.
Accordingly, we cannot consider the facts that Frazier was
abandoned as a child or that he has an abnormal response to
stress. The state concedes, however, that Frazier presented
evidence concerning his brain injury to the state courts during
the postconviction proceedings. Although information about
the nature and severity of the injury was less thoroughly
developed in those proceedings than it is now, sufficient facts
were presented to indicate the existence of evidence
concerning Frazier’s brain injury that could have been
developed and presented to the jury during the penalty phase.
We must therefore examine whether the existence of this
evidence is sufficient to undermine our confidence in the
result of the penalty-phase proceeding. Frazier’s trial counsel
presented only his unsworn denial of guilt, which does not
amount to mitigating circumstances under Ohio law. This
virtually assured him a sentence of death. Had trial counsel’s
performance not been deficient, the jury could have heard
evidence of Frazier’s fall from a ladder and associated brain
injury, which could have correlated with his criminal conduct.
Such evidence would have constituted mitigating
circumstances under Ohio law. Ohio Rev. Code
§ 2929.04(B).
26 Frazier v. Huffman No. 01-3122
In concluding that Frazier had not shown prejudice, the
district court observed in a footnote “that the evidence of
record, in addition to enabling the jury to find the petitioner
guilty beyond a reasonable doubt, shows that he acted with
deliberation and forethought . . . . These acts do not manifest
impulsive or uncontrolled behavior.” This analysis, however,
does not account for the probability that the jury would find
that a murderer who suffers from a functional brain
impairment is less morally culpable than one who does not,
even if the brain impairment did not “cause” Frazier to
murder Skiba.
Indeed, we think that the circumstances of the crime were
amenable to such mitigating evidence. Competent trial
counsel could have pointed out, for example, that the blood-
stained, broken knife found beside Skiba’s corpse came from
her grandparents’ silverware, and that Skiba had been
sleeping with a knife under her pillow. Furthermore, during
the jailhouse questioning of Frazier on November 14, 1990,
the police officers and prosecutor did not ask Frazier whether
he murdered Skiba. They asked, instead, whether he intended
to kill her when he went to her grandparents’ home on the
morning of the murder. Frazier shook his head no in response
to that question. Trial counsel could thus have depicted a
scenario in which Frazier went unarmed to Skiba’s
grandparents’ home to confront or threaten her, not to kill.
But when he encountered the knife-wielding Skiba, Frazier
succumbed to the stress of the moment, grabbed the knife
from her hands, and wildly stabbed Skiba far more times than
would have been necessary to kill her.
Such a scenario fits the facts of the crime and is made
plausible by the existence of a functional brain impairment,
which, although it might not have turned Frazier into a cold
and calculating murderer, could have impaired his ability to
deal with stressful or emotional situations, even ones of his
own making. This is but one example of how competent trial
counsel might have utilized the evidence of Frazier’s
functional brain impairment to generate reasonable doubt that

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No. 01-3122 Frazier v. Huffman 27
the aggravating circumstances outweighed the mitigating
circumstances in the present case. We are by no means
suggesting that the presentation of such evidence and
argument would have assured Frazier the avoidance of the
death penalty, but we are saying that this outcome is within
the realm of reasonable probability as defined in Strickland.
466 U.S. at 694.
As the Supreme Court observed in Williams v. Taylor, 529
U.S. 362, 398 (2000): “Mitigating evidence unrelated to
dangerousness may alter the jury’s selection of penalty, even
if it does not undermine . . . the prosecution’s death-eligibility
case.” In Williams, the Court recognized that “the reality that
[the defendant] was ‘borderline mentally retarded[]’ might
well have influenced the jury’s appraisal of his moral
culpability.” Id. We conclude that the same is true here. Had
the jurors been confronted with the mitigating evidence of
Frazier’s brain injury, the probability that at least one juror
would not have decided that the aggravating circumstances of
the case outweighed the mitigating circumstances beyond a
reasonable doubt “is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; see
also Wiggins v. Smith, 123 S. Ct. 2527, 2543 (2003) (“Had
the jury been able to place petitioner’s excruciating life
history on the mitigating side of the scale, there is a
reasonable probability that at least one juror would have
struck a different balance.”); Ohio Rev. Code § 2929.03(D)(2)
(requiring jury unanimity for the imposition of a death
sentence). We therefore hold that Frazier has established that
his right to the effective assistance of counsel was violated at
the penalty phase of his trial, and that the state court’s
conclusion to the contrary is an unreasonable application of
clearly established Supreme Court precedent.
The dissent does not quibble with the foregoing analysis on
the merits. It contends instead that “Frazier’s claim of
ineffective assistance of counsel is procedurally defaulted and
this court consequently has no business considering the merits
of that claim.” (Dissenting Op. at 34) According to the
28 Frazier v. Huffman No. 01-3122
dissent, the Ohio Court of Appeals never reached the merits
because it held that the claim was barred by the state-law
doctrine of res judicata. (Id.)
This will surely come as a surprise to the state, which
(1) conceded in its brief that “Frazier did present his ‘brain
damage’ claim to the state courts,” and (2) then proceeded to
argue that “the Ohio court’s finding that trial counsel acted
competently in this regard is not an unreasonable application
of Strickland.” We therefore believe that the dissent
mischaracterizes the state’s argument by asserting that the
state raised a procedural-default defense to every instance of
ineffective assistance alleged by Frazier. Instead, the state
made clear its position that Frazier had forfeited any
ineffective-assistance claim premised upon his abandonment
as a child or his abnormal response to stress, and that his
preservation of the claim based upon his brain damage did not
permit him to revive his other instances of ineffective
assistance.
As the above-quoted language demonstrates, however, the
state did not contend that Frazier procedurally defaulted his
ineffective-assistance claim based upon his counsel’s failure
to investigate and present evidence of his brain damage. The
state’s failure to raise the issue of procedural default with
respect to this instance of ineffective assistance is itself
sufficient to dispense with our consideration of the question.
“A court of appeals is not ‘required’ to raise the issue of
procedural default sua sponte.” Trest v. Cain, 522 U.S. 87,
89 (1997).
Even if the state had not waived its procedural-default
defense, moreover, we do not believe that the defense would
be applicable in this case. “[A] procedural default does not
bar consideration of a federal claim on either direct or habeas
review unless the last state court rendering a judgment in the
case clearly and expressly states that its judgment rests on a
state procedural bar.” Harris v. Reed, 489 U.S. 255, 263
(1989) (internal quotation marks omitted). Contrary to the

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No. 01-3122 Frazier v. Huffman 29
dissent’s interpretation of the discussion by the Ohio Court of
Appeals, we find no clear and express statement in the
opinion that the state procedural doctrine of res judicata was
the basis for the decision.
The Ohio Court of Appeals concluded its analysis of
Frazier’s ineffective-assistance claim as follows:
In view of the fact that appellant had the assistance of at
least three experienced attorneys during all phases of the
trial proceedings, and mindful that a reviewing court will
not second-guess what are essentially matters of trial
strategy, neither the record nor appellant’s evidence
provided dehors the record supported his claim.
Frazier, 1997 WL 764810, at *6. We do not believe that the
above statement can be fairly characterized as a determination
that Frazier had attempted to present evidence that should
have been presented on direct appeal. Rather, the Ohio
court’s conclusion goes to the merits of Frazier’s claim.
Disposing of Frazier’s ineffective-assistance claim on the
merits was also sensible as a matter of state law. The Ohio
Supreme Court has held that “[w]here defendant, represented
by new counsel upon direct appeal, fails to raise therein the
issue of competent trial counsel and said issue could fairly
have been determined without resort to evidence dehors the
record, res judicata is a proper basis for dismissing
defendant’s petition for postconviction relief.” State v. Cole,
443 N.E.2d 169, 170 (Ohio 1982) (syllabus). According to
the dissent, the Ohio Court of Appeals decided that Frazier’s
claim was barred by res judicata after concluding that the
evidence provided by his postconviction experts was not new
because trial counsel had been “appraised of the purported
brain injury.” (Dissenting Op. at 36 (quoting Frazier, 1997
WL 764810, at *6)) Such a decision, however, would have
been a mistaken application of Cole, because, as our own
analysis of Frazier’s claim demonstrates, the simple fact that
trial counsel “had been appraised of the purported brain
30 Frazier v. Huffman No. 01-3122
injury” does not in and of itself establish ineffective
assistance of counsel. We thus conclude that the dissent’s
reading of the decision by the Ohio Court of Appeals is
plausible, but that it is neither the only nor the best
interpretation.
The Ohio Court of Appeals’s decision also contains no
express statement that its conclusion on the merits of
Frazier’s ineffective-assistance claim is an alternative
holding. This contrasts with that court’s disposition of
another argument raised by Frazier concerning “the trial
court’s failure to grant appellant’s motion for a psychological
expert in mitigation,” as to which the appellate court
specifically stated that “the trial court properly applied the
doctrine of res judicata.” Frazier, 1997 WL 764810, at *6.
In sum, the state did not raise the issue of procedural
default with respect to the “brain damage” claim by Frazier
upon which we grant relief. Alternatively, we do not believe
that the Ohio Court of Appeals clearly and expressly rested its
decision regarding this claim on an independent state
procedural ground. We are therefore unpersuaded by the
thoughtful argument of the dissent.
E. Remaining claims
Frazier advances sixteen other claims on appeal that merit
substantially less discussion. Having concluded that the
penalty phase of Frazier’s trial was constitutionally defective,
we have no need to consider any other arguments concerning
that portion of the trial. We therefore will not address
Frazier’s claim that he was entitled to the appointment of an
independent psychological expert for the penalty phase, or his
claim that the trial court’s instruction to the jury at the penalty
phase was unconstitutional.
Of the remaining fourteen claims, the only one that
deserves further discussion by this court is Frazier’s argument
that his rights under the Ex Post Facto Clause, U.S. Const.

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No. 01-3122 Frazier v. Huffman 31
art. I, § 9, cl. 3, were violated. As detailed in Part I.A. above,
Frazier, while in jail and without a lawyer, requested and
received a meeting with two police officers and Prosecutor
McGinty on November 14, 1990. Frazier essentially offered
to plead guilty to the rape and murder of Skiba in exchange
for a definite prison term. That offer played prominently in
the state’s presentation of its case. Frazier argues that the
admission of evidence concerning his offer was made
possible only by a change in the Ohio rules of evidence that
occurred after the offense but prior to trial, resulting in a
violation of the Ex Post Facto Clause.
In November of 1990, when Skiba was murdered, Rule 410
of the Ohio Rules of Evidence provided that evidence of “an
offer to plead guilty or no contest to the crime charged or to
any other crime, or statements made in connection with, and
relevant to, any of the foregoing . . . offers, is not admissible
in any . . . criminal proceeding against the person who made
the offer.” Rule 410 was revised in July of 1991. The revised
version, in effect during Frazier’s trial, prohibited the
introduction of evidence concerning “[a]ny statement made in
the course of plea discussions in which counsel for the
prosecuting authority or for the defendant was a participant
and that do not result in a plea of guilty or that result in a plea
of guilty later withdrawn.” Ohio R. Evid. 410(5).
Every court to have considered Frazier’s ex post facto claim
has resolved it by concluding that, because the police officers
and the prosecutor told Frazier that they could not negotiate
a plea bargain at that time, no plea discussions took place on
November 14, 1990. We find this analysis problematic.
Although current Rule 410 requires the occurrence of plea
discussions in order to activate the prohibition, former Rule
410 does not. The former rule instead references only “an
offer to plead guilty.” Thus, were we in a position to decide
this question of state law in the first instance, it would seem
to us that Frazier’s offer to plead guilty was admissible under
current Rule 410, but not under former Rule 410. Of course,
it is the contrary judgment of the Ohio Supreme Court that
32 Frazier v. Huffman No. 01-3122
counts in construing the Ohio Rules of Evidence. See
Frazier, 652 N.E.2d at 1012 (“[W]e concur with the lower
courts in their determination that the interview that occurred
on November 14, 1990 was simply not a plea discussion. We
would reach the same result regardless of which version of
Evid. R. 410 we applied.”) (emphasis omitted).
We add, moreover, that the Ex Post Facto Clause is not
implicated by the change to Rule 410. Frazier argues that the
Clause is violated by “[e]very law that alters the legal rules of
evidence, and receives less, or different testimony, than the
law required at the time of the commission of the offence, in
order to convict the offender.” Calder v. Bull, 3 U.S. (3 Dall.)
386, 390 (1798) (opinion of Chase, J.). But the change to
Rule 410 did not alter the quantum of evidence necessary to
convict Frazier. Rather, it expanded the range of admissible
testimony. The Supreme Court explained the difference over
a century ago:
Statutes which simply enlarge the class of persons who
may be competent to testify in criminal cases are not ex
post facto in their application to prosecutions for crimes
committed prior to their passage; for they do not . . . alter
the degree, or lessen the amount or measure, of the proof
which was made necessary to conviction when the crime
was committed.
Hopt v. Utah, 110 U.S. 574, 589 (1884); see also Carmell v.
Texas, 529 U.S. 513, 542-47 (2000) (explaining the
distinction). In addition to falling short under AEDPA,
therefore, Frazier’s ex post facto claim fails on the merits.
The district court disposed of Frazier’s thirteen remaining
claims in a careful and detailed manner. These claims range
from the contention that Ohio’s statutory scheme of capital
punishment is unconstitutional to the argument that the
instruction on reasonable doubt given by the trial court was
constitutionally deficient. Our discussion of these other
claims would be duplicative and serve no useful purpose. We

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No. 01-3122 Frazier v. Huffman 33
therefore adopt the reasoning of the district court as to all of
these remaining claims and find them without merit.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE in
part the judgment of the district court, GRANT Frazier a
conditional writ of habeas corpus that will result in the
vacation of his death sentence unless the state of Ohio
commences a new penalty-phase trial against him within 180
days from the date that the judgment in this matter becomes
final, and REMAND the case for further proceedings
consistent herewith.
34 Frazier v. Huffman No. 01-3122
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
ALICE M. BATCHELDER, Circuit Judge, concurring in
part and dissenting in part. The majority entertains the
question of whether Frazier received the effective assistance
of counsel at the mitigation stage of his trial, despite the fact
that the Ohio courts never reached that question because, they
held, Frazier’s claim was barred by the state law doctrine of
res judicata. Because Frazier’s claim of ineffective assistance
of counsel is procedurally defaulted and this court
consequently has no business considering the merits of that
claim, I respectfully dissent from the majority’s holding in
Part II.D of its opinion. To the extent that the claims
addressed in Parts II.C and II.E are not waived or
procedurally defaulted, I concur in the majority’s treatment of
those claims, see 28 U.S.C. § 2254(b)(2) (“An application for
a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State”), as I do in the
remainder of its opinion.
I
Before addressing the legal arguments the majority makes
in Part II.D, it is important to understand the treatment of
Frazier’s ineffective assistance of counsel claim by the Ohio
courts. After his conviction and sentencing in state trial court,
Frazier appealed to the Ohio Court of Appeals, where he
raised fourteen assignments of error. In none of those
assignments did Frazier mention the issue of the effectiveness
of his trial counsel, despite the fact that Frazier’s attorneys on
appeal were not the same lawyers that represented him at

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No. 01-3122 Frazier v. Huffman 35
1Frazier did challenge the constitutionality of several Ohio statutes
on the basis that those statutes worked to deprive him of the effective
assistance of counsel. However, he did not argue on direct appeal that his
counsel were ineffective.
2Ohio Rev. Cod e § 2953 .21 p rovid es, when a prisoner has filed for
post-conviction relief, that “[u]nless the petition and the files and records
of the case show the petitioner is not entitled to relief, the court shall
proceed to a prompt hearing on the issues . . . .” § 2953.21(E) (1997).
However,
[b]efore granting a hearing on a petition filed under division (A)
of this section, the court shall determine whether there are
substantive grounds for relief. In making such a determination,
the court shall consider, in addition to the petition, the
supporting affidavits, and the documentary evidence, [and ] all
the files and records pertaining to the proceedings against the
petitioner . . . .
§ 2953 .21(C).
trial.1 On appeal by right to the Ohio Supreme Court, Frazier
once again failed to raise his claim of ineffective assistance of
counsel.
After the United States Supreme Court denied Frazier’s
petition for a writ of certiorari, he brought a petition under
Ohio Rev. Code § 2953.21 (1997),2 to vacate or set aside his
sentence in the Cuyahoga County, Ohio, Court of Common
Pleas, and asserted for the first time that his trial counsel were
ineffective because they failed to investigate and present
mitigating evidence at the sentencing phase of his trial. The
Court of Common Pleas, without addressing the merits of this
claim, stated as follows:
Consistent with the principles of res judicata, matters
which have been or should have been raised on direct
appeal may not be considered in post-conviction
proceedings. State v. Ishmail (1981), 67 Ohio St. 2d 16.
In addition, where a defendant, represented by new
counsel on direct appeal, fails to raise the issue of
competent trial counsel and said issue could fairly have
36 Frazier v. Huffman No. 01-3122
3Ohio law provides that the p rocedural bar of res jud icata does not
app ly in this context if the petitioner sets forth, in support of his newly
raised claim, evidence that was not availab le at trial or o n direc t appeal,
and without which the defense could not have been expected to raise the
new claim. See State v. Cole, 443 N.E.2d 169, 171 (Ohio 1982 ).
4The majority agrees with the Ohio courts’ factual finding that
Frazier’s trial attorneys knew enough about his head injury to present that
evidence for mitigation purposes: “Although information about the nature
and severity of the injury was less thoroughly develope d in those [state
postconviction] proceed ings than it is now, sufficient facts were presented
to indicate the existence o f evidence concerning Frazier’s brain injury that
could have bee n developed an d presented to the jury d uring the pena lty
phase.” Supra, at 25.
been determined without evidence [beyond] the record,
res judicata is a proper basis for dismissing the
defendant’s Petition for Post-Conviction Relief. State v.
Cole (1982), 2 Ohio St. 3d 112.
J.A. at 312 (Court of Common Pleas opinion). Because, the
court held, Frazier’s trial counsel were different from his
counsel on direct appeal, “[a]ny [in]effective assistance of
counsel [claim] concerning trial counsel’s performance
should have been raised on direct appeal in accordance with
Cole.” Id. The court therefore granted the State’s motion to
dismiss, and denied Frazier’s request for an evidentiary
hearing.
The Ohio Court of Appeals affirmed. After examining the
“new evidence” of his “organic brain impairment” that Frazier
claimed was unavailable at trial,3 the court held that the
evidence was not new, and hence did not permit Frazier to
overcome the bar of res judicata. The court noted that “it can
reasonably be concluded trial counsel were appraised of the
purported brain injury from their review of the medical
records; however, as a matter of trial strategy counsel deemed
this avenue of defense unworthy of further pursuit.”4 State v.
Frazier, No. 71746, 1997 WL 764810, at *6 (Ohio Ct. App.
Dec. 11, 1997). This conclusion, the court said, was

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No. 01-3122 Frazier v. Huffman 37
5The majo rity corre ctly notes that “[t]he first two facto rs . . . have no
relevance in explaining how the strategy ultimately pursued by Frazier’s
counsel was reasonable.” Supra, at 22. But this statement indicates that
the majo rity misund erstand s the legal ana lysis that the Ohio Court of
Appeals unde rtook. T he O hio Court of App eals was not see king to
support the “reasonab leness” of the trial counsel’s investigatory tactics (or
lack thereof); rather, the court was explaining the basis for its conclusion
that trial counsel was aware of evidence Frazier claimed was not available
at trial, a matter to which the first two factors are obviously relevant.
“reinforced” by three factors, namely, (1) counsel’s argument
that a psychologist would merely interpret the findings of the
mitigation expert; (2) counsel’s filing of a motion to limit
reference to mitigating factors; and (3) “the thorough and
professional manner in which counsel conducted appellant’s
defense . . . .”5 Id. These statements by the Ohio Court of
Appeals were not made in the context of discussing the merits
of Frazier’s claim of ineffective assistance of trial counsel,
but in the context of determining whether that ineffective
assistance claim was barred by the state law doctrine of res
judicata. The Common Pleas Court, without reaching the
merits of that claim, had granted the state’s motion to dismiss
Frazier’s post-conviction petition, holding that the claim was
barred by res judicata. The Court of Appeals affirmed that
judgment, mentioning the merits only to the extent of
explaining their conclusion that the “new”evidence of head
injury Frazier urged the court to rely on in order to get around
the res judicata bar was not new at all.
II
Respondent Huffman raises Frazier’s “failure to present the
[ineffective assistance of counsel] claim and the facts in
support of it to the state courts.” Huffman Br. at 49-50.
Notwithstanding the Supremacy Clause of the Constitution,
see Cooper v. Aaron, 358 U.S. 1, 18-19 (1958), federal
habeas courts are not free to undertake a plenary review of all
claims brought pursuant to 28 U.S.C. § 2254. See, e.g.,
Wainwright v. Sykes, 433 U.S. 72, 81 (1977) (“a state
38 Frazier v. Huffman No. 01-3122
decision resting on an adequate foundation of state
substantive law is immune from review in the federal
courts”). Instead, this court must first consider whether
Frazier’s ineffective assistance of counsel claim is properly
before it prior to discussing the merits of that claim.
This issue “concerns the respect that federal courts owe the
States and the States’ procedural rules when reviewing the
claims of state prisoners in federal habeas corpus.” Coleman
v. Thompson, 501 U.S. 722, 726 (1991). The Supreme Court
has held that “[w]here the petitioner . . . failed properly to
raise his claim on direct review, the writ [of habeas corpus] is
available only if the petitioner establishes ‘cause’ for the
waiver and shows ‘actual prejudice resulting from the alleged
. . . violation.’” Reed v. Farley, 512 U.S. 339, 354 (1994)
(quoting Wainwright v. Sykes, 433 U.S. at 84). This rule
applies when a state court, relying upon a state rule of law,
refused on collateral appeal to consider a claim that the
petitioner could have raised on direct review, and the
petitioner now raises the same claim on habeas appeal.
Teague v. Lane, 489 U.S. 288, 297-98 (1989) (holding that
petitioner’s claim, which he failed to raise on direct review in
state court, was procedurally defaulted because the Illinois
appeals court refused, on the basis of a state law doctrine of
res judicata, to consider the claim in a state collateral
proceeding); Coleman v. Mitchell, 268 F.3d 417, 428-29 (6th
Cir. 2001) (Clay, J.) (holding that Ohio’s doctrine of “res
judicata under § 2953.21 [is] an adequate and independent
state ground justifying foreclosure of constitutional claims”
in habeas proceedings); see generally Coleman v. Thompson,
501 U.S. at 729-30 (“The [independent and adequate state
ground] doctrine applies to bar federal habeas when a state
court declined to address a prisoner’s federal claims because
the prisoner had failed to meet a state procedural requirement.
In these cases, the state judgment rests on independent and
adequate state procedural grounds.”).
This court’s initial obligation with regard to Frazier’s
ineffective assistance of counsel claim, which the Ohio courts

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No. 01-3122 Frazier v. Huffman 39
6W hile the Ohio Supreme Court was actually the last state court to
rule on Frazier’s collateral appeal, the Court summarily “decline[d]
jurisdiction to hear the case and dismisse[d] the appeal as not involving
any substantial constitutional question.” J.A. at 345 (Ohio Supreme C ourt
order). This court therefore looks to the Ohio Court of Appeals decision
as the final reasoned state court decision for purposes of considering
procedural default. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)
(holding that a federal court looks through an unexplained order “to the
last reasoned decisio n,” and does not assume that the unexplained order
held was barred by res judicata, is to determine whether the
claim is in fact procedurally defaulted. First, we must
consider whether Ohio’s procedural bar to Frazier’s raising
his constitutional claim was “firmly established and regularly
followed” at the time the Ohio Court of Appeals ruled. Ford
v. Georgia, 498 U.S. 411, 424 (1991). It clearly was. State
v. Cole, 443 N.E.2d 169 (Ohio 1982), the case on which the
Court of Common Pleas relied, and which was subsequently
cited by the Ohio Court of Appeals as support for its holding
on res judicata, is not only itself established, but relies
directly upon the 1967 case of State v. Perry, 226 N.E.2d 104
(Ohio 1967). State v. Perry was cited by this court when we
held that “application of res judicata . . . is an adequate and
independent state ground for barring habeas review of
constitutional claims.” Coleman v. Mitchell, 268 F.3d at 429.
Second, we must determine whether the state’s procedural
rule barring review is an adequate and independent state
ground sufficient to foreclose review of constitutional claims.
I have already cited authority establishing that Ohio’s
doctrine of res judicata meets this requirement. See id.; see
also Mason v. Mitchell, 320 F.3d 604, 628 (6th Cir. 2003)
(reaffirming Coleman v. Mitchell’s holding that Ohio’s
doctrine of res judicata is an adequate and independent state
ground).
Third, we must be sure that the last state court to rule on
Frazier’s claim actually disposed of that claim on a state law
procedural ground.6 Thompson, 501 U.S. at 734-
40 Frazier v. Huffman No. 01-3122
lifts the prior holding that the claim at issue was procedurally barred).
35. “[A] procedural default does not bar consideration of a
federal claim on either direct or habeas review unless the last
state court rendering a judgment in the case clearly and
expressly states that its judgment rests on a state procedural
bar.” Harris v. Reed, 489 U.S. 255, 263 (1989) (internal
quotations omitted). So long as the state court does so, its
finding of procedural default precludes consideration by a
federal court even when the state court also analyzed the
defaulted claim under federal law. Id. at 264 n.10. In this
case, the majority uses as its tenuous springboard to launch
into the merits of Frazier’s ineffective assistance
claim—without ever addressing whether the claim was
procedurally defaulted—a patently incorrect characterization
of the Ohio Court of Appeals’ ruling: “Frazier’s ineffective-
assistance claim was rejected by the Ohio Court of Appeals
on the basis of the first prong of Strickland.” Supra, at 19. In
fact, as I discussed above, the Ohio Court of Appeals held that
“the trial court properly applied the doctrine of res judicata.”
Frazier, 1997 WL 764810, at *6. That court never mentioned
Strickland or any other federal court precedents pertaining to
ineffective assistance of counsel (with the exception of
one—Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995)—upon
which Frazier relied but that contained facts “inapposite” to
those of the present case). Even if the Ohio Court of Appeals
had analyzed the merits of Frazier’s ineffective assistance
claim, its distinct holding based upon the state law doctrine of
res judicata is sufficient to bar our consideration of that claim
unless Frazier can show cause and prejudice.
Finally, we must examine whether the Ohio Court of
Appeals, which applied the doctrine of res judicata and
rejected Frazier’s contention that his claim was based upon
evidence outside the record, actually “discuss[ed] any of that
evidence, ma[d]e specific factual findings on the matter, or
provide[d] any reasoned analysis” to uphold its decision.
Williams v. Coyle, 260 F.3d 684, 696 (6th Cir. 2001).

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No. 01-3122 Frazier v. Huffman 41
“Without such analysis, we are unwilling to rule that the
claim is procedurally barred.” Id. In this case, the Ohio
Court of Appeals discussed the “new” evidence put forth by
Frazier, including the affidavit of psychologist Sharon L.
Pearson, who opined that Frazier should have been examined
by a licensed psychologist as part of his mitigation defense.
Frazier, 1997 WL 764810, at *6. Moreover, the court
explained—in the portion of its opinion that the majority
confuses for a Strickland analysis—the basis for its
conclusion that Frazier’s trial counsel were aware of Frazier’s
head injury and therefore why the evidence dehors the record
was not sufficient to overcome the procedural bar of res
judicata. Id. The Ohio Court of Appeals’ analysis was more
than sufficient to comply with the requirements of Williams
v. Coyle.
Therefore, this court is required to determine whether
Frazier can show both cause and prejudice for his failure to
comply with Ohio’s procedural rule. Clearly, he cannot.
Frazier has not shown any cause for his failure to raise on
direct appeal his claim of ineffective assistance of counsel. In
his brief before this court, he fails to address the issue of
procedural default at all, and instead launches directly into a
discussion of the merits of his claim. “We . . . require a
prisoner to demonstrate cause for his state-court default of
any federal claim, and prejudice therefrom, before the federal
habeas court will consider the merits of that claim.” Edwards
v. Carpenter, 529 U.S. 446, 451 (2000). Frazier has not even
attempted to make such a demonstration, and any excuse
Frazier might now present for his failure to raise his
ineffective assistance claim properly on direct appeal is
waived. See Bickel v. Korean Air Lines Co., 96 F.3d 151, 153
(6th Cir. 1996) (citing Fed. R. App. P. 28 and noting that the
court “normally decline[s] to consider issues not raised in the
appellant’s opening briefs”).
The one means by which Frazier could bypass the
requirement that he show cause is extraordinary: “where a
constitutional violation has probably resulted in the
42 Frazier v. Huffman No. 01-3122
conviction of one who is actually innocent, a federal habeas
court may grant the writ even in the absence of a showing of
cause for the procedural default.” Murray v. Carrier, 477
U.S. 478, 496 (1986). The present issue concerns whether
Frazier was sentenced fairly, and so “the ‘actual innocence’
requirement must focus on those elements that render a
defendant eligible for the death penalty, and not on additional
mitigating evidence that was prevented from being introduced
as a result of a claimed constitutional error.” Sawyer v.
Whitley, 505 U.S. 333, 347 (1992). Since Frazier only claims
that the alleged ineffective assistance of his counsel resulted
in a failure to present available mitigating evidence at the
sentencing phase, and since the evidence of his brain
impairment does not call into question the jury’s finding of
aggravating factors, Frazier cannot use the doctrine of “actual
innocence of the death penalty” to excuse his procedural
default. Id. Moreover, since Frazier does not set forth any
evidence which, if believed, might lead a trier of fact to find
him innocent of the murder of Tiffany Skiba, he cannot meet
Carrier’s actual innocence standard, namely, that the alleged
constitutional error probably resulted in the conviction of a
defendant who was actually innocent. Schlup v. Delo, 513
U.S. 298, 322-27 (1995).
III
All means of circumventing the Ohio courts’ holding that
Frazier’s ineffective assistance claim was barred by res
judicata have been foreclosed; this court therefore has no
legal authority to consider the merits of that claim. In so
doing, the majority contravenes clearly established precedent
of the United States Supreme Court and this Circuit, and
“undermine[s] the State’s interest in enforcing its laws.”
Coleman v. Thompson, 501 U.S. at 731. I therefore dissent.

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